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Imagine a world where women can’t use sex as a weapon of power against men.
Following the bombshell release of a draft decision showing a majority of US supreme court justices may overturn Roe v Wade, legal experts believe other laws about individual autonomy may be in danger, including the right to access contraception.
Laws broadly banning abortion may also prohibit certain forms of birth control that opponents incorrectly say are working as abortion-causing medications. And the supreme court decision underpinning the right to access contraception, Griswold v Connecticut, could also come under fire in much the same way as Roe did.
“If this [draft] opinion becomes the opinion of the court, Griswold is imperiled – no question,” said Wendy Parmet, faculty co-director for the Center for Health Policy and Law at Northeastern University.
Justice Samuel Alito, in his draft decision, argues that Roe is a faulty law. Roe is based on the 14th amendment, as are decisions like Obergefell v Hodges on same-sex marriage, Loving v Virginia on interracial marriage, and Lawrence v Texas on consensual sex.
Just so you know, this is the 14th Amendment.
That’s what these lunatics have been claiming guarantees an absolute right to on-demand abortion. And the rest of the things listed.
“The opinion doesn’t read like Roe was a wrongful tangent of the foundation” within the 14th Amendment, Parmet said. “It really reads like the foundation was inappropriate and unfounded. So judges are going to find it hard to make the distinction with contraception.”
While Alito expressly states that similar laws are safe because they are not about “moral” issues as he says abortion is, there’s no reason the same logic couldn’t be applied to other legal decisions, experts say.
This is true.
All of these “rights” are based on the theory that the 14th Amendment gives the federal government a right to enforce “privacy” on the states.
“If the draft becomes the real opinion, all of those issues – contraception, consensual sex and marriage rights – certainly are all at risk,” said Priscilla Smith, lecturer on law and reproductive justice at Yale Law School. “They have definitely left the door wide open.”
The right to abortion is not explicit in the constitution, Alito argues in the draft. (That’s partly because at the time of the framing, abortion was legal in the US before “quickening,” when the movements of a fetus are first felt.) Similarly, contraception is not mentioned specifically in the constitution, so strict interpretations of rights could exclude it.
“There are a lot of decisions that follow from the idea of a constitutional right to privacy,” Parmet said. “Once you throw down the best-known decision in that category of cases, every single other case is now up for grabs.”
The right to access contraception may not be challenged on its own, but it could be taken up under strict abortion laws – both new laws being introduced as well as older state laws on the books prior to Roe.
Anti-abortion advocates have argued incorrectly that certain birth control methods, such as Plan B and certain intrauterine devices (IUDs), work as abortifacients because they may prevent the implantation of fertilized eggs. But there is no pregnancy without implantation, so these medications cannot terminate pregnancies.
I doubt any state would have the nerve to ban interracial marriage. But you could, if removing abortion takes away the right of the federal government to push all of these “privacy”-based rights onto the states. The fact that the Supreme Court’s draft says “oh but it’s only for abortion though” doesn’t mean anything, as the underlying argument is that this “privacy is everything in your life you want to do” interpretation of the 14th Amendment is invalid.
There might not even be states with the nerve to ban contraception.
But there are definitely states that would want to ban gay marriage.
And, in theory, you could see some kind of rolling roll-back of all of these “rights.” All you would need is one state legislature to go in and say “this isn’t privacy and we want to ban this” and SCOTUS would no longer have an excuse as to why you can’t ban it.
The entire “14th privacy basically means anything” was a way to undermine the US Constitution and strip states of rights that were explicitly given to them by the Constitution itself.
Without this 14th gimmick, you’re back to the 10th Amendment.
